Virginia county sues state behavioral health system for failing to admit psychiatric patient

‘Bed of last resort law’ requires state-run facilities to admit patients if other treatment isn’t available

By: - March 10, 2022 7:39 am

The Commonwealth Center for Children and Adolescents is the only state psychiatric hospital that accepts children. (Image via University of Virginia Medical School)

Virginia’s state-run psychiatric hospital system was hit with a lawsuit this week after failing to admit a juvenile patient who was going through a mental health crisis.

Instead of receiving care, the patient — a foster child under the custody of the Giles County Department of Social Services — spent four days confined in a Richmond emergency room waiting for a state bed to become available, according to a petition filed by the agency against the Virginia Department of Behavioral Health and Developmental Services, which oversees the state’s eight publicly funded mental health hospitals.

The case — one of the first to challenge the state for declining a patient who was technically required to be admitted under its own regulations —  is the latest blow to the agency, which faced harsh scrutiny last summer after temporarily closing more than half its hospitals to new admissions. Under Virginia’s “bed of last resort” law, state-run hospitals are required to accept patients if a space can’t be found at another facility, including private hospitals with behavioral health units.

But as publicly funded facilities continue to struggle with staffing shortages and widespread overcrowding, experts and frontline providers say the law functionally isn’t working. Alison Land, the DBHDS commissioner under former Gov. Ralph Northam, described last summer’s order as a desperate response to dangerous understaffing that limited the agency’s ability to provide care.

Even with all eight hospitals reopened to new admissions, capacity is still limited. And with a shortage of private beds, patients in crisis regularly spend days boarded in the emergency room and sometimes can’t access treatment at all.

Eastern State Hospital in Williamsburg, Virginia is one of eight state-run psychiatric hospitals (Photo courtesy of DBHDS)

“I’m only surprised that it took this long for there to be a lawsuit,” said Anna Mendez, executive director of the Charlottesville-based nonprofit Partner for Mental Health. “If you’re being deprived of civil rights for the purposes of your mental health treatment, you have to actually be receiving that treatment. And right now, we’re seeing people who are simply not getting that care.” 

‘Sooner or later this was going to happen’

The petition underscores an increasingly common situation facing patients in crisis as well as the providers charged with caring for them. According to the lawsuit, the patient — whose exact age has not been released — was admitted to Chippenham Hospital in Richmond under a temporary detention order, which allows individuals to be held involuntarily if they present a danger to themselves or others. 

Richard Chidester, an attorney for Giles County, said the Feb. 21 order required the girl to be evaluated at Tucker Pavilion, Chippenham’s onsite psychiatric unit, and transferred to the Commonwealth Center for Children and Adolescents for treatment. 

Located in Staunton, CCCA is the only state-run hospital that can accept minors, according to Lauren Cunningham, a spokesperson for DBHDS. But severe understaffing means it’s been operating at roughly a third of its capacity since July. Currently, the hospital is unable to fill any of its five open positions for licensed practical nurses and has a 50 percent vacancy rate among direct care nurses. There are 57 openings for aides who provide hours of direct patient care. As a result, the facility is only operating 18 out of 48 beds.

“We can say that as public and private hospitals alike are still reeling from staffing shortages and COVID-19-related bed closures, DBHDS has been working with partners statewide to ensure continuity of services to the fullest extent they can be delivered in both community and inpatient settings,” Cunningham said, adding that the agency does not comment on pending litigation.

She listed 15 private hospitals with psychiatric units for children and adolescents, and Chidester said local evaluators also attempted to place the patient at a private facility. It’s unclear why Chippenham could not admit her for inpatient mental health treatment and CCCA was listed as the facility on the girl’s detention order. 

Tension between DBHDS and private hospitals is just one component of Virginia’s continuing bed crisis. The private sector is facing increasing pressure to take on more of the state’s involuntary admissions, while the industry argues it handles a disproportionate share of voluntary cases while facing the same staffing challenges.

While the state has repeatedly denied requests to add more publicly funded beds, it has directed money to private hospitals to take on more patients. But those facilities still aren’t statutorily required to accept involuntary admissions even if they have space available. That’s left many patients in a holding pattern with nowhere to go. 

(Getty Images)

Under a functioning system, the Giles County patient would have been admitted for treatment within hours after the detention order was issued. But without a private bed — and with the state unable to admit her in compliance with its own bed of last resort law — that didn’t happen. Instead, the lawsuit alleges that the girl spent days in the emergency room, supervised by a police officer, until her TDO expired. 

According to the petition, CCCA notified the county’s Department of Social Services that a bed would likely be available Feb. 25, four days after her TDO was issued. But after the order expired, the state refused to admit her despite having an available space. After 96 hours in the emergency room, Chippenham also refused to continue holding her without a TDO, and she left without ever receiving mental health treatment.

Dr. Joran Sequeira, a board member for the Virginia College of Emergency Physicians, said it’s particularly challenging to find treatment for young patients given the limited availability of pediatric mental health beds. But she described the process as grueling for patients regardless of age.

“It’s just awful care for anyone, whether they’re a child or not, to sit in a room for that long,” she said. Emergency rooms can’t provide counseling and Sequeira said doctors aren’t even able to  prescribe new psychiatric medications unless the patient becomes agitated or disorderly.

She’s seen calm and cooperative patients decline under the stress of being confined and become angry. And aggressive behavior can make many hospitals even less willing to accept psychiatric patients, even if it occurs under stress. Like many experts, she was unsurprised that the state’s inability to admit new patients had led to a lawsuit.

Emergency physicians have led calls for reform at the state level along with law enforcement officers, who are regularly required to spend hours supervising patients in the emergency room before they’re admitted to a treatment facility. 

“You go to some of the state hospitals and parking lots are just filled with sheriff’s cars and police cars waiting to hand off patients,” said John Jones, executive director of the Virginia Sheriffs Association. “It’s a system failure, but I guessed that sooner or later this was going to happen.”

Legislators have debated the issue for years, but many frontline experts say there have been few systemic solutions. The Sheriff’s Association successfully lobbied for a bill, passed by both chambers of the General Assembly this year, that would allow law enforcement to transfer custody of patients to third-party transportation companies contracted with the state. The legislation would relieve officers from sitting with patients in the hospital, but Jones acknowledged it would do little to address the underlying problem of bed availability.

Gov. Glenn Youngkin pledged to invest in a “mental health care crisis plan” on the campaign trail, and the governor is “currently working with legislators from both parties to find long term solutions to ensure that care is accessible and there are much-needed improvements to state hospital services and community mental health services,” spokesperson Macaulay Porter said in a statement.

Budget proposals from both the House and the Senate include roughly $90 million over the next two years to raise salaries at state-run hospitals and spread roughly $150 million over multiple priorities, including supportive housing for patients discharged from the facilities. Roughly $50.5 million would go toward STEP-VA, an initiative to expand mental health services through the state’s local community service boards, and both proposals would maintain a 12.5 percent increase in Medicaid reimbursement rates for private mental health providers.

It’s unclear how much the incremental changes will reform the state’s mental health system. Even with growing investment in local services over the last five years, DBHDS has estimated it would cost $150 million just to fully fund STEP-VA. And Mendez said Medicaid reimbursement rates are still so low that it’s difficult to find providers for much-needed services like intensive outpatient treatment, which has been shown to reduce psychiatric hospitalizations.

“Until we’re willing to make a real investment, we’re going to continue to have crisis after crisis after crisis,” she said. “We’ve been undermining our system for so long, it’s frustrating to me that people continue to be surprised by situations like this.”

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Kate Masters
Kate Masters

An award-winning reporter, Kate grew up in Northern Virginia before moving to the Midwest, earning her degree in journalism from the University of Missouri. She spent a year covering gun violence and public health for The Trace in Boston before joining The Frederick News-Post in Frederick County, Md. While at the News-Post, she won first place in feature writing and breaking news from the Maryland-Delaware-DC Press Association, and Best in Show for her coverage of the local opioid epidemic. Before joining the Mercury in 2020, she covered state and county politics for the Bethesda Beat in Montgomery County, Md.

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